However, if none of the above reasons are applicable reasons for dissolving the marriage, and neither party is responsible for the breakdown of the marriage, then separation is another avenue that can be explored.

A spouse filing for divorce needs to show that:

the couple have lived apart for a continuous period of at least 3 years prior to filing for a writ of divorce and that the other party consents to the divorce

the couple have lived apart continuously for more than 4 years prior to filing for the writ for divorce, in which case consent of the other party is not required

The separation period must be continuous and is nullified should the couple cohabit for 6 months or more during the separation period.

Separation

There are a few manners of separation that the court will consider as valid and viable before approving divorce proceedings:

informal separation

separation agreement

judgement of judicial separation

Informal Separation

An informal separation is when a couple are living apart voluntarily and is using that as grounds for divorce. In these cases, physical separation would be required:

living in 2 different households

living under one roof but clearly and specifically do not have sexual relations nor any marital engagements

do not carry out any typical spousal duties

separation is by choice and not out of necessity

Separation Agreement

A couple can apply for a deed of separation which states clearly terms and conditions during the period of separation. These terms could relate to matters like child custody or division of assets. Couples have a choice of engaging a lawyer to draft the deed of separation, or agree on a private arrangement. Private arrangements can either be a written document composed by both parties, or a verbal agreement.

Judgement of Judicial Separation

Another option for a separating couple would be to apply for a judgement of judicial separation. However, to do so the couple must prove irretrievable breakdown of the marriage either through adultery, desertion or unreasonable behaviour.

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